Considered and decided by Klaphake, Presiding Judge; Worke,
Judge; and Crippen, Judge.[*]

U N P U B L I S H E D O P I N I O N

WORKE, Judge

On appeal from summary judgment in a dram-shop
action against retail liquor vendors, appellants argue that the district court
erred as a matter of law in concluding that Restatement (Second) of Torts §
433B (1965) does not apply and that respondents did not have a duty to prove
that they did not sell the illegally purchased beer. Respondent Shanty Bottle Shop also argues that
the action against it should have been dismissed because it was not given notice
within 240 days after the formation of an attorney-client relationship, as
required by the Minnesota Civil Damages Act.
Because section 433B has not been adopted by Minnesota courts, it does
not apply. We further conclude that respondent
Shanty Bottle Shop received notice within the required 240 days, and we
affirm.

D E C I S I O N

Summary Judgment

“On an appeal from
summary judgment, we ask two questions:
(1) whether there are any genuine issues of material fact and (2)
whether the [district] court[] erred in [its] application of the law.” State by Cooper v. French, 460 N.W.2d 2, 4
(Minn. 1990).

A motion for summary
judgment shall be granted when the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any,
show that there is no genuine issue of material fact and that either party is
entitled to a judgment as a matter of law.
On appeal, the reviewing court must view the evidence in the light most
favorable to the party against whom judgment was granted.

On
May 17, 2004, Erik Marwick died as a result of injuries sustained in a car
accident while he was a passenger in a car driven by his friend Joshua
Lofquist. At the time of the crash,
Marwick and Lofquist had been drinking heavily for several hours despite being
underage. Appellants James P. Carey, as trustee
for heirs and next of kin of Erik Richard Marwick, deceased, et al., argue that
under Restatement (Second) of Torts § 433B (1965), a prima facie case
for the illegal sale of liquor to a minor occurred at each respondent liquor
store. Appellants further argue that
having established that a tortious act occurred, under section 433B, the
burden to prove which entity sold the beer Lofquist consumed shifts to respondents
Silver Creek Liquor Co., Inc., d/b/a Silver Creek Liquor (Silver Creek); J
& H Distributing, Inc, d/b/a University Liquors (University Liquors);
Coborn’s Inc., d/b/a Cash Wise Liquor (Case Wise); and Red Carpet Bottle House,
Inc., d/b/a Shanty Bottle Shop (Shanty), and the summary-judgment motions
should have been denied.

Under
the Minnesota Civil Damages Act, “[i]t is unlawful for any person: (1) to sell,
barter, furnish, or give alcoholic beverages to a person under 21 years of
age[.]” Minn. Stat. § 340A.503,
subd. 2(1) (2006). It is undisputed that
the beer that Marwick and Lofquist had been drinking was obtained from Mike
Leinonen, who received it from Paul Starkovich.
Starkovich was underage when he purchased the beer. On May 17, Marwick and Lofquist began drinking
the beer in Lofquist’s car as they traveled to a trailer owned by a relative of
Lofquist. By the time they reached the
trailer, they had each consumed approximately ten cans of beer. At the trailer, they drank a few more beers
and finished off a half-liter of rum they found in the trailer. Later that afternoon, they left the trailer
to meet a friend, and on their way Lofquist lost control of the car and
crashed. Marwick was ejected from the
car and died as a result of his injuries.

In March 2005, appellants entered into a fee agreement in
a lawsuit against respondent Starkovich Distributing, Inc., the liquor
distributor run by Starkovich’s father. During
his deposition, Starkovich stated that the cases of beer he sold to Leinonen
were leftovers from several purchases he made in the past for his personal
consumption. Starkovich named four
liquor stores (respondents) where he was able to purchase alcohol despite being
underage. Starkovich ranked the liquor
stores in order of the probability that he obtained the beer there—Cash Wise,
Shanty, University Liquors, and Silver Creek—however, he could not say where he
purchased the beer that ended up in the hands of Marwick and Lofquist. Appellants served notice of dram-shop claims
against respondent liquor stores and commenced an action against them for the
death of Marwick. See Minn. Stat. § 340A.801, subd. 1 (2006).

Appellants’
argument is based on the theory of alternative liability. The alternative-liability theory was first
announced in Summers v. Tice, 199
P.2d 1 (Cal. 1948), and is now set out in Restatement (Second) of Torts §
433B(3) (1965):

Where
the conduct of two or more actors is tortious, and it is proved that harm has
been caused to the plaintiff by only one of them, but there is uncertainty as
to which one has caused it, the burden is upon each such actor to prove that he
has not caused the harm.

“The theory of alternative
liability has not been adopted in Minnesota.”
Bixler by Bixler v. Avondale Mills,
405 N.W.2d 428, 430 (Minn. App. 1987), review
dismissed (Minn. June 30, 1987). This
court has expressly rejected Summers
and, therefore, the theory of alternative liability. Leuer
v. Johnson, 450 N.W.2d 363, 365 (Minn. App. 1990), review denied (Minn. Mar. 16, 1990). In Leuer,
this court examined Minnesota’s refusal to adopt the rule set forth in Ybarra v. Spangard, 154 P.2d 687 (Cal. 1944),
“which extended res ipsa loquitor to a plaintiff who had been injured while
unconscious on the operating table by an unidentifiable instrumentality in the
control of an unidentifiable tortfeasor.”
Id. at 364. We held in Leuer that “Minnesota’s rejection of Ybarra, on which Summers
is based, must be interpreted to weaken further any reliance formerly placed
upon Summers.” Id.
at 366. “[B]ecause Ybarra has been consistently rejected by the Minnesota Supreme
Court, we must reject Summers as
well.” Id. at 365. The adoption of
the theories set forth in Ybarra and Summers is a task more appropriately
left to the supreme court. See Hanzel v. Good Earth, Inc., 371
N.W.2d 72, 75 (Minn. App. 1985) (“No Minnesota case has yet adopted the [Ybarra] theory. Such a
change in Minnesota law is more appropriately left to the supreme court.”). Finally, appellants’ argument that Minnesota
law permits shifting the burden of proof to respondents based on the holding in
Mathews v. Mills, 288 Minn. 16, 178
N.W.2d 841 (1970), fails. In Mathews, the Minnesota Supreme Court
adopted Restatement (Second) of Torts § 433B(2), dealing with apportionment
of liability; the theory of alternative liability is found in section 433B(3),
which has not been adopted by Minnesota courts.
288 Minn. at 22, 178 N.W.2d at 845.

In
light of the fact that Minnesota has not adopted the theory of alternative
liability, the burden of proving each respondent’s liability remains with
appellants. Appellants cannot meet that
burden here because appellants cannot prove which respondent sold the beer that
was eventually consumed by Lofquist, resulting in Marwick’s death. Because there are no genuine issues of
material fact and the district court did not err in its application of the law, the granting of respondents’ summary
judgment motions was appropriate.

Notice

In its notice of review, respondent Shanty Bottle Shop argues
that appellants do not have a viable cause of action against it because
appellants failed to comply with the 240-day notice requirement under the Minnesota
Civil Damages Act. Shanty’s argument is
a question of statutory construction, which is reviewed by this court de
novo. Brookfield Trade Ctr., Inc. v. County of Ramsey, 584 N.W.2d 390,
393 (Minn. 1998). “[W]ords and phrases
are construed according to . . . their common and approved usage; but technical
words and phrases and such others as have acquired a special meaning . . . are
construed according to such special meaning.”
Minn. Stat. § 645.08(1) (2006).

“In the case of a claim for
damages, the notice must be served by the claimant’s attorney [upon a licensed
retailer of alcoholic beverages or municipal liquor store]within 240 days of the date of entering an
attorney-client relationship with the person in regard to the claim.” Minn. Stat. § 340A.802, subd. 2 (2006). The issue here is whether the notice statute on
the claim against Shanty began to toll when appellants retained counsel in the
initial suit against respondent Starkovich Distributing, Inc. The original dram shop claim, however, did
not involve Shanty. Shanty was served
with notice of a dram shop claim on September 28, 2005, one day before
appellants entered into a fee agreement for the lawsuit against respondent
liquor retailers. Therefore, the notice
requirement was satisfied.